Deonarine Ramnarain v Chandradat Ramnarain

Ramnarain v Ramnarain 2006 NY Slip Op 04404 [30 AD3d 395] Decided on June 6, 2006 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 6, 2006
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
ANITA R. FLORIO, J.P.
DAVID S. RITTER
GABRIEL M. KRAUSMAN
JOSEPH COVELLO, JJ.
2005-04667 DECISION & ORDER

[*1]Deonarine Ramnarain, plaintiff-respondent,

v

Chandradat Ramnarain, appellant, et al., defendant; Sandra Baichu, nonparty-respondent. (Index No. 24620/98)




Stephen David Fink, Forest Hills, N.Y., for appellant.
Goldberg, Scudieri, Lindenberg & Block, P.C., New York,
N.Y. (Paul Block of counsel), for
plaintiff-respondent.
Sandra Baichu, Jamaica, N.Y., nonparty-respondent pro se.

In an action, inter alia, for the partition of real property, the defendant Chandradat Ramnarain appeals from so much of an order of the Supreme Court, Queens County (LeVine, J.), dated October 1, 2004, as directed the return of the plaintiff's down payment on the sale of the property.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs.

The plaintiff was the high bidder at an auction for the sale of the real property that is the subject of this action, and made a down payment to the referee. The Supreme Court, although finding the plaintiff in default of the terms of the sale and directing that the property be re-sold, directed the return of his down payment. This was error (see Maxton Bldrs. v Lo Galbo, 68 NY2d 373, 378; New Colony Homes v Long Is. Prop. Group, LLC, 21 AD3d 1072). However, in light of our determination in a related appeal reversing the order granting the appellant's cross motion, inter alia, to hold the plaintiff in default (see Ramnarain v Ramnarain, 30 AD3d 394 [2006][decided herewith]), forfeiture of the down payment is not appropriate. However, if the down payment has already been returned, and the re-sale of the property has not been concluded, the plaintiff must provide a new down payment of $34,000 to the referee, the same amount of the returned down payment. [*2]
FLORIO, J.P., RITTER, KRAUSMAN and COVELLO, JJ., concur.

2005-04667 DECISION & ORDER ON MOTION
Deonarine Ramnarain, plaintiff-respondent,
v Chandradat Ramnarain, appellant, et al.,
defendant; Sandra Baichu, nonparty-respondent.
(Index No. 24620/98)

Motion by the defendant Chandradat Ramnarain for leave to appeal from an order of the Supreme Court, Queens County, dated October 1, 2004. By decision and order on motion dated July 21, 2005, the motion was held in abeyance, and was referred to the Justices hearing the appeal for determination upon the argument or submission thereof.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

ORDERED that the motion is granted.
FLORIO, J.P., RITTER, KRAUSMAN and COVELLO, JJ., concur.

ENTER:

James Edward Pelzer

Clerk of the Court